Citation NR: 9635237
Decision Date: 12/11/96 Archive Date: 12/19/96
DOCKET NO. 95-16 921 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for a seizure disorder
secondary to treatment for gonorrhea.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Amy E. Balbach, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1943 to
April 1946.
This appeal comes before the Board of Veterans’ Appeals
(Board) from a December 1994 rating decision by the
Department of Veterans Affairs (VA) St. Petersburg, Florida,
Regional Office (RO), which denied entitlement to service
connection for a seizure disorder secondary to treatment for
gonorrhea.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he experiences frequent headaches
with dizziness and seizures. He further contends that such
episodes are the direct result of having undergone fever
therapy for gonorrhea while in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim of
entitlement to service connection for a seizure disorder is
well-grounded.
FINDING OF FACT
The claim of entitlement to service connection for a seizure
disorder is not supported by cognizable evidence showing that
the claim is plausible or capable of substantiation.
CONCLUSION OF LAW
The veteran has not presented a well grounded claim for
entitlement to service connection for a seizure disorder.
38 U.S.C.A. § 5107(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by military
service. 38 U.S.C.A. § 1131 (West 1991).
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is
service-connected; it requires evidence relevant to the
requirements for service connection and of sufficient weight
to make the claim plausible and capable of substantiation.
See Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v.
Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990).
The question of whether or not a claim is well-grounded is
significant because if a claim is not well-grounded, the
Board does not have jurisdiction to adjudicate that claim.
Boeck v. Brown, 6 Vet.App. 14, 17 (1993). In this regard,
the Court has observed that the statutory prerequisite of
submitting a “well-grounded” claim “reflects a policy that
implausible claims should not consume the limited resources
of the VA and force into even greater backlog and delay
claims which--as well-grounded--require adjudication. . . .
Attentiveness to this threshold issue is, by law, not only
for the Board but for the initial adjudicators, for it is
their duty to avoid adjudicating implausible claims at the
expense of delaying well-grounded ones.” Grivois v. Brown, 6
Vet.App. 136, 139 (1994).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995);
see also 38 U.S.C.A. § 1131 (West 1995); 38 C.F.R. § 3.303
(1995). This means that there must be evidence of disease or
injury during service, a current disability, and a link
between the two. Further, the evidence must be competent.
That is, an injury during service may be verified by medical
or lay witness statements; however, the presence of a current
disability requires a medical diagnosis; and, where an
opinion is used to link the current disorder to a cause
during service, a competent opinion of a medical professional
is required. See Caluza at 504.
Service medical records revealed that the veteran was treated
for gonorrhea, acute, old, in September 1943. A final
summary noted that a “field course was given with no
improvement.” The summary further noted treatment including
one course sulfadiazine of 42 grams and one course of
sulfathiozide, 42 grams. Nurse’s notes and progress notes
dated in October and November 1943, showed that discharge and
cloudy urine was still present despite the administration of
medication. Treatment records in November 1943 revealed
continued treatment for gonorrhea with sulfadiazine and
sulfathiazide.
A November 1943 consultation request and report revealed the
opinion that the veteran was a candidate for fever therapy.
A physiotherapy record dated in November 1943 revealed that
the veteran underwent fever therapy at 106 degrees for 7.5
hours. The records noted that the veteran’s condition was
satisfactory throughout. Also, a venereal record from Borden
General Hospital, in Chickasha, Oklahoma, has been associated
with the veteran’s service medical records which also lists
fever therapy treatment in November 1943. Proceedings of a
Disposition Board which convened November 30, 1943, provided
a diagnosis of gonorrhea, acute, old, drug resistant. Fever
therapy at 106 degrees for eight hours in November 1943 was
also noted. Condition upon completion of case was noted as
cured, and the board recommended that the veteran return to
duty at his proper station.
Of record are VA outpatient and inpatient treatment records
dated from 1971 to 1995 which reveal no complaints,
treatment, or diagnoses relating to complaints of dizziness,
fainting, or seizures, except for VA progress notes dated in
December 1995, which noted that the cause of dizzy spells for
many years associated with diaphoreses has been without
explanation. An impression of dizzy spells was provided. An
August 1978 VA medical record specifically noted that the
veteran was negative for seizures. Also of record are VA
examinations from 1962, 1978, and 1993, which reveal no
complaints or diagnoses relating to seizures, dizzy spells,
headaches, or fainting spells.
In March 1994 the veteran filed a claim for entitlement to
service connection for his “frequent seizures and episodes of
fainting and severe headaches” as secondary to treatment for
gonorrhea from November 1942 to January 1943. Submitted
therewith was a service record which indicated inactive
service from November 12, 1942, to January 27, 1943.
An October 1994 VA examination, scheduled in order to provide
a medical opinion as to whether the veteran’s fever therapy
received in service has resulted in the veteran’s alleged
headaches, fainting spells and seizures. The examination
revealed the opinion that “there is no evidence based on
neurologic exam or CT scan of the brain that the patient’s
complaints or findings are a result of a gonorrhea infection
fifty years ago.”
The examination indicated a long history of headaches and
dizziness evaluated in the past with a CT scan which revealed
no abnormality in the posterior fossa consistent with
“arachnoid cyst vs. enlarged cistena magna.” The examiner
further noted that the veteran’s symptoms have been stable
throughout the years with some headaches that are associated
with sensitivity in the scalp. There were also reported to
be associated episodes of dizziness without loss of
consciousness. The veteran denied a history of a head
injury, seizures, or strokes. Evidence of “potential
cerebellar dysfunction” was indicated as well as the need for
further evaluation of his posterior fossa. Upon cerebellar
examination, dysmetria bilaterally, worse on the right, with
dysdiadochokinesia was shown.
At an August 1995 personal hearing, the veteran testified
that he suffered a bout of gonorrhea in service for which he
first received treatment at a VA hospital in Arkansas, and
for which he later was transferred to a civilian hospital in
Oklahoma. He states that he was treated at this hospital for
a period of sixty-one days, the same sixty-one days for which
he was listed as being AWOL on his discharge certificate. He
states that the military hospital treated him with sulfur
tablets and then transferred him to the above-mentioned
private hospital where he received fever therapy. The
veteran contends that he was placed in a coffin-like” chamber
wherein he lost consciousness. The veteran testified that he
remained in the hospital for approximately two weeks yet does
not remember what, if any, treatment he received for his
gonorrhea after being placed in the coffin-like chamber.
The veteran testified that he experienced several periods of
dizziness while in service and also experienced a fainting
spell shortly after discharge from service which, as the
veteran alleged, caused him to lose control of his vehicle
and hit a tree. The veteran testified that several VA
physicians who have treated him for his headaches have stated
that his headaches are the result of arthritis in his back
and joints. He contended that he takes aspirin for his
headaches and estimated that he has had approximately a dozen
seizures in the past six months. He stated that he takes
five different medications but is unsure which, if any, are
prescribed for a seizure disorder.
A lay statement submitted by a fellow soldier and dated in
October 1995, revealed the statement that the veteran was in
the hospital for approximately two months after which he had
seizures and headaches and was transferred to another outfit.
The Board finds that the evidence does not demonstrate a
nexus, or link, between the veteran’s fever therapy received
while in service and his documented complaints of headaches,
dizziness, and seizures, as noted on the most recent VA
examination. The evidence reveals no competent medical
opinion or finding linking the two, or for that matter,
relating a seizure disorder to any aspect of his service
experience. VA treatment records provide no competent
evidence linking his complaints of headaches to the fever
therapy and a VA examination specifically revealed the
opinion that no such link exists. As such, the claim is not
well-grounded and must be denied. See Caluza v. Brown, 7
Vet.App. 498, 506 (1995); see also 38 U.S.C.A. § 1131 (West
1995); 38 C.F.R. § 3.303 (1995).
The veteran’s own assertions, to include his hearing
testimony, to the effect that his problems with headaches,
dizziness, and seizures are the result of fever therapy he
underwent for gonorrhea in service, are not particularly
probative because lay persons (i.e., persons without medical
expertise) are not competent to offer medical opinions.
Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5
Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492
(1992).
Although, when a claim is not well grounded, the VA does not
have a statutory duty to assist a claimant in developing
facts pertinent to his claim, VA may be obligated under
38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed
to complete his application. This obligation depends upon
the particular facts of the case and the extent to which the
Secretary of the Department of Veterans Affairs has advised
the claimant of the evidence necessary to be submitted with a
VA benefits claim. Robinette v. Brown, 8 Vet.App. 69 (1995).
In this case, the RO fulfilled its obligation under section
5103(a) in official letters and documents associated with the
claims file in which the appellant was informed of the
reasons for the denial of his claim. Furthermore, by this
decision the Board is informing the appellant of the evidence
which is lacking and that is necessary to make his claim well
grounded.
ORDER
As the claim of entitlement to service connection for a
seizure disorder secondary to treatment for gonorrhea is not
well grounded, the appeal is denied.
JEFF MARTIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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